| N.Y. App. Div. | Nov 14, 1945
The appeal in this case is to review a decision and award by the Workmen’s Compensation Board.
On September 13, 1940, the claimant, Ivie McNaught, while engaged in the course of his regular employment, fell from a stepladder used at the employer’s place of business. As a result of the fall claimant sustained injuries to his left arm and to his right leg. As a result of his injuries the right leg was amputated above the knee. He suffered a 100% permanent loss of the use of the right leg and a 25% permanent loss of the nse of the left arm. An award was made for such injuries. As a
Appellants in their brief concede that as a natural and unavoidable result of the accidental injury sustained on September 13, 1940, claimant wore an artificial leg, which was furnished by the employer, and that on July 18, 1942, while claimant was engaged in the regular course of his employment and while he was working for the same employer as a ticket chopper, the artificial leg, which was not properly fitted, gave way and caused claimant to lose his balance, and that, as he was about to fall, he grabbed a ticket box which came down and struck him on the big toe of the left foot, as a result of which he was caused to suffer gangrene of the big toe of the left foot, ulceration of the left foot and vasomotor discoloration of the left foot, especially the great and second toes, all of which caused him to be disabled.
In the last formal finding and decision of the board the injury sustained in claimant’s home is not mentioned but such injury appears to have formed a partial basis for the award.
It is urged by appellants that the occurrence at the employer’s theater on July 18, 1942, was an accident which arose out of and in the course of employment separate and distinct from any prior accident and that the carrier for the employer at that time is the only carrier liable for compensation benefits. Reliance is placed on Matter of Anderson v. Babcock & Wilcox Co. (256
In Matter of Phillips v. Holmes Express Co. (190 A.D. 336" court="N.Y. App. Div." date_filed="1919-12-29" href="https://app.midpage.ai/document/phillips-v-holmes-express-co-5256062?utm_source=webapp" opinion_id="5256062">190 App. Div. 336, affd. 229 N.Y. 527" court="NY" date_filed="1920-05-04" href="https://app.midpage.ai/document/people-v--egan-3604960?utm_source=webapp" opinion_id="3604960">229 N. Y. 527) the claimant, a chauffeur, fractured his right forearm while cranking an automobile. Some time later he returned to work and while cranking a car, the fracture rebroke. At that time the employer was insured by a different carrier. An award was made against the first carrier, which award was affirmed by the Appellate Division and the Court of Appeals.
In the case at bar the Industrial Board has found that the disability resulting from the accident on July 18, 1942, was caused by a defective artificial leg and was a natural, unavoidable and consequential result of the first accident. The evidence justifies that conclusion.'
All concur.
Decision, and award affirmed, with costs to the Workmen’s Compensation Board. [See post, p. 781, 866.]